Womack v. Stokes

35 S.W. 82, 12 Tex. Civ. App. 648, 1896 Tex. App. LEXIS 253

• Court: Court of Appeals of Texas
• Decided: March 12, 1896
• Docket: No. 1045.
• Status: Published

Opinion

WILLIAMS, Associate Justice.

Plaintiff in error, having recovered a judgment for money against F. P. Rice and R. F. Stokes, made affidavit for a writ of garnishment to J. K. P. Stokes, T. J. Bouten and T. H. Bayne. J. K. P. Stokes was the clerk of the court, and the affidavit was sworn to before and filed by him. A bond for the writ was also executed by plaintiff, payable to the three garnishees, and was approved and filed by Stokes. Stokes accepted service of the garnishment, but also issued the writ, including himself with Bayne and Bouten, as garnishees, which was served on Bayne and Bouten. All of the garnishees answered in due time, the answers of Bayne and Bouten being sworn to before Stokes and filed by him. No exceptions were taken to any of the proceedings by the garnishees in the court below. Bouten answered that he owed B. F. Stokes, one of the judgment debtors, the amount of a note, which was fully described and which was due before the answer was filed, and of which said Stokes was then and continued up to the time the judgment in the garnishment was rendered the owner and holder. Bouten set up the further fact that the note was given for the homestead of B. F. Stokes, describing the property, and was not subject to garnishment. Bayne had subsequently bought the same property from Bouten, and had agreed with him to pay the note due Stokes, but there was no contract between Bayne and Stokes to that effect. J. K. P. Stokes, when the garnishment was served, held the Bouten note for collection, as agent of B. F. Stokes. These facts were all stated in the answers, and no other ground for holding the garnishees appeared. B. F. Stokes intervened, claiming that the Bouten note was exempt from the writ, because given for his homestead, and judgment was rendered discharging the garnishee, and plaintiff has prosecuted this writ of error. The conclusions of law and fact found by the district judge were filed by J. K. P. Stokes.

It is urged by defendant in error that Stokes was disqualified, as clerk, from taking the affidavit and bond for garnishment and from issuing the writ and swearing the garnishees to their answers and filing same, and that all of these proceedings should be treated as nullities and the judgment should be affirmed, or else reversed and the proceedings dismissed. We cannot agree to this. Stokes could take the affidavit for a garnishment for Bayne and Bouten and issue the writ to them. He was disqualified from acting as far as he himself was concerned. The fact that all were joined in the proceeding made it irregular, but no good reason is seen why it should be treated as void, so far as the others were concerned. The defect was one which, in our opinion,' could be waived by Bayne and Bouten, and they effectually did so by answering and making no objection to the proceeding. As far as Stokes is concerned, no right to charge him has been shown and hence it is unnecessary to determine the effect of the proceedings as to him. It will be observed that there is no joint liability sought to be enforced against the three garnishees. We heretofore dismissed an appeal, on motion of appellees in this case, on the ground that the bond was approved and the transcript was made out and certified by Stokes; but the objection was properly made, and, besides, the appeal bond was made payable to Stokes jointly with the others, and was taken and approved by him. The bond for the garnishment in this case was unnecessary and performs no office. Rev. Stats., arts. 183, 184.

The note could not be reached in the hands of J. K. P. Stokes, being a chose in action, and the judgment discharging him will be affirmed.

Delivered March 12, 1896.

No indebtedness was shown from Bayne to either of the judgment debtors, and the judgment discharging him will also be affirmed.

But the answer of Bouten showed on its face that the note therein set up was subject to the writ, and the plea of intervention stated the same facts. Notes given for the purchase money of a homestead are not exempt from debt. Mann v. Kessley, 71 Texas, 609; Kirby v. Giddings, 13 S. W. Rep., 27; Moursund v. Preiss, 19 S. W. Rep., 775.

The judgment discharging Bouten will therefore be reversed, and judgment will be here rendered against him for the amount' of the note (which is less than the judgment in favor of plaintiff in error), and foreclosing the lien on the property purchased by him from B. F. Stokes, described in the answer.

Affirmed in part.

Reversed and rendered in part. ■